AMENDMENT # 1 TO AGREEMENT
AND PLAN OF REORGANIZATION
DATED APRIL 14, 2000
INTERIM OPERATING AGREEMENT
This Amendment # 1 to the Agreement and Plan of Reorganization dated April
14, 2000, the Interim Operating Agreement ("Agreement"), is entered into
effective as of the 19th day of April, 2000 (the "Effective Date") by and
between 0XxxXxxx.xxx, Inc., an Oklahoma corporation ("2TM") and XxXxXxxxx.xxx,
Inc., a Delaware corporation ("GTW"). Each of 2TM and GTW shall be referred to
as a "Party" and collectively as the "Parties".
RECITALS
WHEREAS, 2TM and GTW have entered into an Agreement and Plan of
Reorganization dated April 14, 2000 (the "Reorganization Agreement");
WHEREAS, as part of the Reorganization Agreement, the Parties have agreed
that 2TM will merge with GTW upon completion of shareholder approval by the
shareholders of 2TM;
WHEREAS, the board of directors of the 2TM and GTW each agree that it is in
the best interests of the parties for GTW to provide operational support from
the Effective Date through the closing of the merger as contemplated by the
Reorganization Agreement (the "Interim Period") .
WHEREAS, the parties to the Reorganization Agreement wish to amend the
Reorganization Agreement as hereinafter stated.
AMENDMENT
NOW, THEREFORE, the parties agree as follows:
1. Conflict. In the event there is a conflict between the terms of the
Reorganization Agreement and this Amendment No. 1, the terms of this Amendment
No. 1 shall control any interpretation. Unless this Amendment No. 1 expressly
amends the language of the Reorganization Agreement, the Reorganization
Agreement shall remain in full force and effect.
2. Operating Expenses. GTW hereby agrees to pay operating expenses, as
enumerated in Schedule "A" for the day-to-day operation of the Orange County, CA
2TM facility during the Interim Period (the "Operating Funds").
3. Interim Management. 2TM authorizes the retention of the services of a
management company ("Interim Management Company") to manage 2TM's daily
operations during the Interim Period, subject to the approval of the 2TM Board
of Directors. Fees required for such Interim Management Company shall be paid
by GTW as part of the Operating Funds. 2TM shall delegate all day-to-day
management responsibility of 2TM to the Interim Management Company if one is
retained pursuant to this Agreement.
4. Indemnity. 2TM hereby agrees to indemnify, defend and hold harmless any
Interim Management Company retained pursuant to this Agreement for all acts
performed by it during the Interim Period.
5. Offices and Facilities. GTW is hereby authorized to place its personnel at
2TM's offices and facility. Such GTW personnel shall have the authority to
operate 2TM systems and equipment under the direction of GTW or the Interim
Management Company, if applicable.
6. Equipment. GTW and its personnel are hereby authorized to configure,
program and operate 2TM's computers, equipment, and systems. However, GTW and
its personnel are not authorized to sell, pledge, hypothecate, encumber,
transfer, or move any such computers, equipment, systems, or any other assets of
2TM without 2TM's prior written approval.
7. Investment Relations. GTW shall be authorized and instructed to retain the
services of an investment relations firm on behalf of 2TM. Fees required for
such Investment Relations Firm shall be paid by GTW as part of the Operating
Funds.
8. Term and Termination. This Agreement shall be in effect for a period of 60
days from the Effective Date and thereafter month to month until either approval
or disapproval of the merger contemplated by the Reorganization Agreement by the
shareholders of 2TM or GTW.
9. Representations and Warranties. Each Party hereby represents, warrants and
covenants as follows:
a. When executed and delivered, the terms hereof shall constitute a valid
and legally binding agreement enforceable in accordance with its terms, except
as may be limited by bankruptcy, insolvency or other laws affecting generally
the enforceability of creditors rights and by limitations on the availability of
equitable remedies.
b. Neither the execution and delivery of this Agreement nor the consummation
or performance of the transactions contemplated herein will violate any law,
rule, regulation, writ, judgment, injunction, decree, determination, or other
order of any court, government or governmental agency or instrumentality,
domestic or foreign, or conflict with or result in any breach of any of the
terms of or the creation or imposition of any mortgage, deed of trust, pledge,
lien, security interest or other charge or encumbrance of any nature pursuant to
the terms of any contract or agreement
10. Severability. If any portion of this Agreement is found by a court of
competent jurisdiction to be void or unenforceable, that portion shall be deemed
to be reformed to the extent necessary to cause such portion to be enforceable
and the same shall not affect the remainder of this Agreement, which shall be
given full force and effect without regard to the invalid or unenforceable
portions.
11. Confidential Information.
a. 2TM, GTW, their agents and employees, and each of them, shall not, during
the term of this Agreement and thereafter, communicate, divulge, or use for the
benefit of itself or any other person, partnership, association, or corporation,
either directly or indirectly, any information or knowledge concerning the any
Party and any information, including but not limited to technical information,
computer specifications, employee lists, customer lists, communication
techniques, invoicing, billing, and schematics, which may be communicated to one
Party by the other Party during the term of this Agreement.
b. 2TM and GTW, and each of them, covenants and agrees that during the term
of this Agreement and for a period of five (5) years thereafter, such party will
not do any act or fail to do any act which may be prejudicial or injurious to
the business and goodwill of the other Party.
12. Entire Agreement. This Agreement, together with the Reorganization
Agreement, along with the exhibits attached hereto, which may be signed in
duplicate or counterparts, contains the entire understanding between the
Parties, and may not be changed, altered, amended, or modified, except in
writing, duly executed by each of the Parties.
13. Assignment; Survival. This Agreement may not be assigned or transferred by
either Party hereto without the prior written consent of all other Parties
hereto. The obligations of the Parties under this Agreement shall survive in the
event of a sale, merger, transfer of substantially all the assets, or change in
control of either Party.
14. Governing Law; Venue. This Agreement shall be governed by the laws of the
State of California, United States of America. Any cause of action brought by
an Party hereunder shall be brought in the court of proper jurisdiction in
Orange County, California.
15. Attorneys' Fees. Should any action be commenced between the Parties to
this Agreement concerning the matters set forth in this Agreement or the rights
and duties of either in relation thereto, the prevailing Party in such action
shall be entitled, in addition to such other relief as may be granted, to a
reasonable sum as and for its Attorney's Fees and Costs.
16. Headings/Captions. The titles and headings are for reference purposes
only and shall not in any way limit the construction or interpretation of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed and delivered as of the date first written above.
2TM GTW
0XxxXxxx.xxx, Inc., XxXxXxxxx.xxx, Inc.,
an Oklahoma corporation a Delaware corporation
/s/ Xxxxxx X. Xxxxxx /s/ Xxx X. Xxxxxxx
_____________________________ _____________________________
By: Xxxxxx X. Xxxxxx By: Xxx X. Xxxxxxx
Its: Chairman and Sole Director Its: Chief Executive
Officer
